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English Libel Law (Parliamentary Proceedings)

This is an important matter in both constitutional and legal terms, and I am pleased that my hon. Friend the Member for Oxford, West and Abingdon (Dr. Harris) secured this timely debate. We have always known, and been proud of the fact, that we have the right to speak our mind in Parliament without fear or favour and without consequences outside this place. That is enshrined in the Bill of Rights, and it is an important right. We also believed that a battle was fought and won in the late 18th and early 19th century to ensure that proceedings in this House were made available to the British public—originally against the views of many in this House. It was protection against Parliament, not others, which sought to fetter the reporting of Parliament. Nevertheless, that battle was won. That is what is in question today. I am pleased that we had meetings with The Guardian and with Carter-Ruck. It clarified a lot of issues for me. I did not realise initially, for instance, that the action was not a defamation action but was based on confidence and that it had been held before a commercial rather than a libel court, so the honourable Justice Maddison perhaps had less experience of that field of work. I also had not realised that the initial super-injunction made no attempt to fetter the discretion of Parliament—it was a catch-all injunction as to the terms under which it could not be reported—but that The Guardian later questioned whether it could report proceedings in Parliament in the context of the order, and was told that it was Carter-Ruck's firm opinion that The Guardian could not, that it would need a variation, and that to do so would be contempt of court. As we know, various things happened after that. I tabled an urgent question on the day, and there was a great deal of action on Twitter and blogs around the nation, for which I am grateful. Points of order were raised, and on that day, the application for confirmation of the injunction was withdrawn. The key question is whether the Carter-Ruck lawyers were right that such an injunction could apply to the reporting of parliamentary proceedings. It is interesting that the Guardian lawyers acquiesced in that view and thought that it might have substance. I have my doubts. I am not a lawyer, but I have read the Parliamentary Papers Act 1840, which appears to be the crucial legislation. It is written in the style of 1840s Acts, but I will read part of it:""It shall and may be lawful for any person or persons who now is or are, or hereafter shall be, a defendant or defendants in any civil or criminal proceeding commenced or prosecuted in any manner soever, for or on account or in respect of the publication ""of any such report, paper, votes, or proceedings by such person or persons, or by his, her, or their servant or servants, by or under the authority of either House of Parliament"—" I think that covers the case in point—to apply to the Speaker or the Clerk of the House for a certificate that such a report is a report authorised by Parliament. If that is presented to the court,""such court or judge shall thereupon immediately stay such civil or criminal proceeding; and the same, and every writ or process issued therein, shall be and shall be deemed and taken to be finally put an end to, determined and superseded by virtue of this Act."" That seems to show pretty conclusively that the legal advice was wrong, but perhaps I am wrong and there is something that I do not understand about it. The second issue is whether such super-injunctions are right in any case. That point has been made by my hon. Friend the Member for Oxford, West and Abingdon and others. The idea that we have somehow lost the principle of open court, and can now not only stop the publication of a particular piece of information by prior restraint but prevent from being known even the fact that it has been before a court, seems a very suspect legal development of recent years, and I question it. The third element is whether companies have the right to that protection of privacy in any case. I understand that article 8 of the Human Rights Act 1998 provides for the right to reputation, but how does that apply to a corporate body? How does it apply to a company that appears—as alleged—to have acted in a totally disreputable way? How can it be right that that is considered a matter of privacy and subject to prior restraint? It worries me that a jurisprudence, not just in libel but in confidence, is developing without recourse to Parliament. It is effectively translating defamation into a tort of negligence, to some extent, but it is certainly developing in a way that encourages the application of prior restraint super-injunctions. That is a key concern. Are we in Parliament satisfied that the laws of libel and privacy should be developed by judges rather than by statute? My answer is no. We need to look at it. The Minister will respond to some of my questions, some she may pass on to others. First, I would like the Speaker of the House to make it plain that he will certify under the Parliamentary Papers Act 1840 anything written within parliamentary proceedings under any circumstances whatever, so that there should be no question of an injunction applying to parliamentary papers. Secondly, I want the sub judice provisions, which are at Parliament's discretion, not to be defeated by prior injunction. Again, that is a matter for the Speaker. I want the Minister to make a declaratory statement that the provisions of the Parliamentary Papers Act 1840 still hold, that it is the right of people in this country to know what happens in their Parliament and that the Lord Chancellor will hold to that right, so that every judge and solicitor out there hears that declaration. If that is not sufficient, I want a protocol in every single injunction that says, "This will not, of course, apply to parliamentary proceedings." In that way, there will be clarity. If none of that succeeds, we need changes in statute law. It is such an important matter of principle that we cannot afford to allow the legal lottery system to affect which judge hears a case and under what circumstances. The matter must be beyond peradventure. I hope that we will return to the provisions at a later stage and reconsider them. The Select Committee report may be exactly the right vehicle to encourage that debate, and we will want to participate fully in it. What we should not stand by and allow is any diminution of the rights of Parliament, not because we are pompous parliamentarians but because the rights of Parliament are the rights of citizens in this country. If we allow them to be diminished, we are not serving our country and our people correctly.